Nurturing Justice in Sierra Leone
Having spent two weeks in the Lioness Mountains, Peter Smith turns the spotlight onto the developing justice system he encountered there.
Mention Sierra Leone and one’s first thoughts are of a small, poor country in sub-Saharan Africa, the grimiest part of the continent, still recovering from a brutal insurgency that was only ended when Tony Blair sent British forces to intervene in 2000.
Large parts of this picture are correct. It is small – only 6 million live there, around a sixth in Freetown – and it is very poor, languishing only a few places from the bottom of the tables of GDP per capita. The roads are ridden with terrible potholes, the electricity is intermittent, amputees beg outside beach bars at night as hookers and expats chat over cocktails, and many Leoneans visibly show the scars of violence on their faces and backs. The Special Court recently convicted the Liberian ex-president, Charles Taylor, for his part in the horrors there.
But these facts omit completely the colour, vibrancy and sheer joy of ‘the Lioness Mountains’ and its people, as I discovered with a group of 10 lawyers and law students on a two-week visit last July. In meeting Leonean legal practitioners and politicians, as well as representatives from the ‘alphabet soup’ of developments agencies and non-governmental organisations (NGOs), we built a picture of a country trying hard to put flesh onto a skeletal-yet-robust justice system, while contributing a little towards the goal of a powerful, fearless and impartial system of justice.
To the English Bar, the law and governance of Salone (as it is affectionately known) is reassuringly familiar, from gowned counsel loitering outside courtrooms in the High Court to Latin tags in court documents and textbooks.
There are about 300 local lawyers, of whom only a dozen practice outside Freetown. Most have degrees from overseas, and are domesticated by a Bar course at the country’s single law school a stone’s throw from the High Court, a splendid Colonial building under the lazy shadows of the national symbol, an enormous cotton tree. A fused profession, a period of pupillage leads to registration with the Bar Association, after which most lawyers effectively practice as solicitor-advocates in small practices. Most lawyers have a mixed civil-criminal workload. No Western law firms have local offices, and the importation of foreign lawyers is still unfortunately contentious.
Within Freetown, this small legal community services magistrates courts, a High Court, Court of Appeal and Supreme Court. Legal authority flows from the enlightened 1991 Constitution, designed during the transition from the post-Independence single-party era to a multi-party democracy. The President, Ernest Bai Koroma, was elected by popular acclamation in 2007 and faces a second election this November. The unicameral Parliament sits on the mountains overlooking Freetown in Israeli-built premises, and contains 124 MPs, of whom 16 are women and a further dozen paramount tribal chiefs.
Judges are appointed on experience and are regarded (at least by the lawyers we spoke to) as fair, particularly at the higher levels, but unwilling to challenge the national Government through strenuous judicial review. It can take five years or more for administrative or public law cases to be heard; many advocates are afraid of losing instructions if they act for claimants against the Government. We witnessed judicial sycophancy as court sessions were cancelled so judges could head to Makeni, the President’s hometown, where his late mother lay in state. New mechanisms to impeach judges will further aid the shift towards the rule of law over the arbitrary and inconsistent rule of personalities.
Facilitating commercial dispute resolution
Salone is predicted to grow its GDP some 8% annually over the next decade and the principle source of this wealth is the extraction of rutile, bauxite, gold and diamonds. The Government has naturally sought to exploit these resources with the backing of the international community, but the lack of expert legal knowledge in the past has meant that international mining concessions have negotiated agreements widely considered unfair in their allocation of risks. A recent Act has created a standard pro-forma agreement and the Government is renegotiating many contracts, tightening tax and employment regulations.
We contributed in small ways to this development. At a packed conference of over 100 lawyers sponsored by their regulatory body, the General Legal Council, Richard Honey (Francis Taylor Building) and I contributed to the proceedings with talks respectively on arbitration and mediation, and lawyers’ liabilities and professional indemnity insurance. Richard also spoke to senior Government law officers on the structures and merits of Public-Private Partnerships.
The Government of Sierra Leone is also improving commercial dispute resolution by introducing a fast-track commercial court (which we found to be modern and well-equipped) which assesses business-related disputes on paper, doing away with a laborious preliminary investigation into the matters in dispute, and has an expedited listings and trial process. But there is still a long way to go to build a justice system international and domestic business can truly trust, hampered in part by the sheer lack of qualified personnel. The only qualified draftswoman, for example, who previously chaired the Law Reform Commission, is now the Solicitor-General, and the Government must rely on international assistance to draft legislation.
Improving criminal justice
By international metrics, Sierra Leone has considerably reduced corruption, nepotism and graft at all levels of society, through popular awareness campaigns and the creation of an Anti-Corruption Commission. Electoral reform has improved transparency, but the fact that no candidate has been disqualified since 2000 swings both ways. There is still some way to go: we witnessed several instances of ‘fines’ paid to the police for alleged traffic violations, and heard of disastrous public procurement schemes which nevertheless saw civil servants and managers ‘rewarded’ handsomely for their endeavours. One example is the ferry across the extraordinary Sierra Leone River estuary, from Lunghi International Airport to Freetown: the boat was bought for millions of dollars but required a three-year refit before it could be used.
Criminality of the common-and-garden variety is also decreasing, but Sierra Leone faces the perennial problems of prison overcrowding – the Pademba Road Prison was designed for 300 but holds up to 1300 – and poor-quality public prosecutors (likened by one experienced counsel to abolished British police courts). We heard of specific structural problems in the investigatory and bail procedures. Courts carry out preliminary investigations before charging which can last up to a year, and they demand the suspect has a local residence for bail. The majority of Freetowners are seasonal migrants who have no fixed address there, automatically making them ineligible for bail, and witnesses can simply disappear. NGOs provide temporary addresses for detainees and are campaigning to scrap preliminary investigations and peremptory remand.
Outside of Freetown, access to formal justice is considerably harder. Lack of resources like cash or trained lawyers means that a system of informal justice has been created, which has flourished since the end of the Civil War and has been aided by a Legal Aid Bill passed by Parliament and awaiting Presidential assent. Community activists called ‘paralegals’ receive basic training in the formal law, and they provide grassroots legal advice and ADR. We ran training for paralegals in Freetown, Makeni and Bo, giving guidance on public speaking, human rights (and specifically the rights of women and of prisoners) and mediation, the last provided by Tim Harry of Maitland Chambers. Twice we held a tripartite negotiation exercise between a fictional mining company, residents’ association and government that saw enthusiastic participation from paralegals and from the Solicitor-General and senior law officers.
Paralegals provide an invaluable service at very little cost, most of which is met from overseas donors and our own Department for International Development. Although there was reluctant acceptance by the legal hierarchy initially (it took eight attempts and considerable foreign assistance for the Legal Aid Bill to be passed) all those we spoke to praised their work profusely, especially as the quality of the paralegals’ services has improved markedly. Community justice groups also campaign for access to health and education, and an improvement in local environmental conditions especially when extractive industries cause unacceptable pollution and damage or renege on their promises to improve infrastructure and community assets.
From a legal perspective, the main problem faced in administering justice in Sierra Leone is the sheer gap between what is needed and the resources readily available. As money and knowledge flow in, Salone will move away from ‘Belgian’ justice (most cars in Sierra Leone are second-hand imports from Antwerp) and towards a sustained, autonomous legal system that uniquely blends national law with customary and regional variations, and is fit for the country’s white-sand beaches and lush mangroves.
Peter Smith is a barrister in London